Sunday, November 29, 2015

Penang government's plan for migrant worker housing is most disappointing. Repeat what the British did to the Indian Plantation workers - isolate them from the rest of the Malaysian community by keeping them in the estates with their own 'sundry shops', sports facilities, etc...

Look like this Jagdeep Singh Deo is too impressed with Singapore - and soon maybe Penang will also pass laws NO MORE allowing migrants workers and foreigners from renting houses and flats in the areas where 'Malaysians' are living. Why? So that 'social problems related to foreign workers can be solved
too' - what social problems are that? Prejudice? Let's not forget that we are a multi-ethnic and multi-religious caring nation, and we respect people.

“We expect construction to start next year and once the dorms are
done, we hope social problems related to foreign workers can be solved
too,” state Housing, Town and Country Planning Committee chairman
Jagdeep Singh Deo announced yesterday.

Workers housing or dorms for all workers - local and foreign > Well, that is not a problem as there are also many Malaysian workers who are there in Penang for work, and cheap bachelor accommodation would be something that people will welcome. But dorms just for migrants is shocking? Workers should also have the CHOICE as to where they stay - let us not start denying workers the choice of their 'home' as it is there is already almost no choice when it comes to work.

Jagdeep's plan seem to be that migrant workers should go to work ...and then to the dorms to stay.. then back to work. Will the Penang Government also be providing the 'prison' busses...and will they all be 'locked in' their dorms, not able to leave until time for work?

“The workers will be able to get everything and they don’t need to go
out after returning from work,”

As it is, migrant workers are treated like 'bonded labour' - what with many employer/agents holding on to migrant worker's passports and work passes(PLKS) - so much so that to go out means risk being arrested and detained..

At present, some employer/agents already police these places which houses migrants - making it difficult (almost impossible) for migrant workers to even move out and interact with other workers ...

Why all these? They do not want migrant workers to know about their rights, organize themselves to defend their rights and/or to fight for better rights. They do not want migrant workers to associate with local workers, and form/join trade unions. They do not want migrant workers to go lodge complaints in the Labour departments/s, with the Human Rights Commission, police...They do not want migrant workers to get get to the Bar Council Legal Aid Centres - dangerous for these 'lawyers' will teach migrant worker their rights and how to fight exploitation...

Well, is the Penang government unconsciously maybe just assisting employers/agent's efforts to isolate migrant workers so that they can be more easily exploited...

What we need is for the Penang government to ensure that employer provided worker accommodation that is fit for human living > i.e it satisfies the minimum standards. The government also can ensure that these workers are treated right with all the freedom of movement and association..

Workers need housing units with certain amount of privacy, own cooking area, bath facilities, etc - they are here usually for 3- 5 years. Dorms maybe OK for flood victims or even students... but certainly not for adults workers.

It really sounds like a Detention Centre - what with 'cooking areas' - this sounds like all the workers may have to go to some common 'cooking area' to do their cooking. This is no proper 'home away from home', which every migrant worker deserves.

“Each of these buildings will have sundry shops, cooking areas, medical and sports facilities.

And why is there dorms going to be built in 'industrial and commercial' areas - Development plans for residential areas have different priorities/consideration from commercial/industrial areas. Then, it looks like Penang is planning to have this many 'migrant' workers for a very long time...???

He said these dorms would be zoned as commercial or industrial areas
so that developers could not package them as residential pro-perties.

Property owner now are able to earn monies by renting out their premises to migrants directly (or sometimes through agents/employers) - Is there a problem with worker housing in Penang? Because if such a big worker housing scheme is put in place, it will affect income of house owners. The trend now is to buy rather than to rent...Will they be able to find new tenants among locals?

Is Penang planning to treat all migrant workers the same - including the ASEAN migrants?

Human Beings we all are - and this policy/plan of Penang stinks of 'discrimination' and segregation of people on the basis of their citizenship status...or is it just a class thing - let us isolate them 'slaves'/bonded labour/'lower class people...? Either way - not good and certainly not Malaysian.

Let us BUST UNIONS - such accomodation will further prevent union formation and strengthening... Unions cannot organize workers at the workplace - they can only do this after work > and such plans that Penang has would probably make it even more difficult for union organizing..

And we all hoped that the Penang Opposition government will be better ...more just and humane? Hopefully this mistake will be speedily remedied...

Monday November 2, 2015 MYT 9:50:29 AM

All clear for foreign worker dorms

GEORGE TOWN: Dormitories to house thousands of foreign workers will soon be part of Penang’s real estate features.

The state government has approved guidelines for such dormitories and four operators have stepped forward to build them.

“Two of the operators have submitted plans for foreign worker dorms near Batu Maung and Bukit Minyak.

“We expect construction to start next year and once the dorms are
done, we hope social problems related to foreign workers can be solved
too,” state Housing, Town and Country Planning Committee chairman
Jagdeep Singh Deo announced yesterday.

Jagdeep Singh:

Two operators have submitted plans to build dorms near Batu Maung and Bukit Minyak.

Foreign workers make up an estimated 20% to 25% of the state’s workforce, though accurate figures are hard to come by.

There are about 40 such dorms in Singapore, housing more than 200,000
foreign workers. Except for Malaysians, foreign workers in Singapore
are not allowed to rent flats or rooms since May 1.

Companies pay dorm operators between S$200 and S$300 (RM608–RM912) to house each foreign worker.

The republic’s “mega-dorms” span over 20 acres and come with cinemas, food courts, beer gardens and even cricket fields.

Jagdeep Singh said he had made a trip to Singapore to see the dorms.

He said the guidelines allowed an 800sq ft-unit to accommodate up to 18 people.

“On 0.81ha (two acres), 5,000 workers can be housed.”

He said these dorms would be zoned as commercial or industrial areas
so that developers could not package them as residential pro-perties.

“Each of these buildings will have sundry shops, cooking areas, medical and sports facilities.

“The workers will be able to get everything and they don’t need to go
out after returning from work,” he said after opening the International
Meatless Day Charity Carnival 2015 at Methodist Boys’ School in Jalan
Air Itam.

Last November, Singapore public-listed corporation Centurion
Corporation Limited announced that it had won an open tender from Penang
Development Cor-poration to build a foreign worker dorm of 12,000 beds
in Juru near the Bukit Minyak Industrial Park.

The reported payable land cost was RM20.8mil, and an artist’s impression of the site shows 12 four-storey blocks.

It was reported that the facilities would include an Internet room,
games room, canteen, laundry room, barber shop, grocery shops and TV
room. - Star, 2/11/2015

Construction begins for foreign worker dormitories in Penang

GEORGE TOWN: The construction of dormitories
for foreign workers in Penang is expected to begin next year as the
state is currently in talks with interested parties.

Penang Housing Committee chairman Jagdeep Singh said the facilities
were proposed to be sited at Bukit Minyak or Batu Maung as these areas
were near factories and industrial areas.

He said such facilities were needed to cut down on issues which may
arise from having foreigners staying in areas where the majority are
locals.

The dormitories in Penang will also come with basic amenities like sundry shops and parks.

"We are currently in the process of finalising the applications
submitted by those interested to build the dorms," he said in a press
conference today after launching an International Meatless Day food
fair.

Jagdeep said the details as to the cost, size and operations, were
being worked out now to ensure the convenience of those staying there.

Saturday, November 28, 2015

Shocking - a crime is a crime, and saying that it was too long ago is no excuse... The Supreme Court Judgment dated 25/11/2015 can be found below. Reading paragraph 8-59 of the Judgment will tell you the facts of what happened.

The government is not obliged to hold a public inquiry into the 1940s
killing of 24 Malayan villagers by a British army patrol – even though
it may have been a war crime – because the atrocity occurred too long
ago, the supreme court has ruled.

The application to court is really about getting a proper inquiry/investigation done.

In late 1969, some 12 years after Malaysia achieved independence, one of
the Scots guardsmen, William Cootes, provided a sworn statement to the
newspaper, The People, which stated that the victims at Batang Kali had
been massacred in cold blood. Sworn affidavits were thereafter taken from three
other guardsmen who were part of the patrol that went to Batang Kali: Alan
Tuppen, Robert Brownrigg and Victor Remedios. They alleged that the deceased
had been massacred on the orders of the two sergeants on the patrol, and it was
suggested by some of the deponents that they had been ordered to give the false
explanation that the victims had been killed when trying to escape. A further guardsman,
George Kydd (who did not provide a written statement) told a reporter on The
People that the Killings were “sheer bloody murder […]. [T]hese people were
shot down in cold blood. They were not running away. There was no reason to
shoot them”.

It was shameful how the British avoided doing a proper inquiry and investigation. In short, the laws do not require them to do so ... and too long a time has past. Of the 5 Supreme Court judges, there was one that dissented - Lady Hale.

What will Najib and our BN government do now? Will we want the TRUTH about the Batang Kali incident to come out - or is our government happy with LIES still in the official British record?

What will the UK government do? Will they at the very least amend their official records to reflect the truth? Or will they do nothing and let LIES remain on record. Would the government apologize to the victims, their families and the people of Malaysia or....?

Relatives of ‘innocent’ Malayans slain by British troops in 1948
have lost their fight for an inquiry, but their lawyer says the UK
courts have conceded ‘mass murder’ occurred.

The Supreme Court ruled on
Wednesday that the appeal brought by relatives of the 23 men killed in
the attack – referred to as Britain’s ‘My Lai’ after a similar atrocity
carried out by US troops in Vietnam – would not be upheld.

The
Malayan Emergency was fought from 1948 to 1960 in what is modern-day
Malaysia between Commonwealth armed forces, including thousands of
British troops, and anti-colonial guerrillas.

The UK’s involvement
stemmed largely from British ties to tin and rubber interests which were
seen as critical to the UK’s post-war recovery.

Men from the British Scots Guards regiment were responsible for
the attack. The long campaign by the families of the victims has
spilled into another row about when cases of colonial brutality are
allowed to disappear into history.

John Halford, of Bindmans solicitors, representing the Batang Kali families, told the court: “On
12 December 1948, British soldiers left the bodies of 24 innocent,
unarmed men riddled with bullets and the British government left their
families without a credible explanation.”

He maintained the courts had denied the families an explanation but did acknowledge “the innocence of those killed, the failures to investigate and the ‘overwhelming’ evidence of mass murder.”

Halford
said the UK has been found responsible and should now apologize,
“withdraw the false account given to parliament,” and address the issue “including by funding a memorial.”

“If it does not, the blood of those killed at Batang Kali will indelibly stain the concept of British justice.”

Speaking to RT, one veteran of the conflict also criticized the court’s response.

Walter Heaton, 84, who was sent to Malaya in 1948 with the Scots Guard sister regiment the Coldstream Guards, told RT there is “no run-out date on justice.”

“Murder is murder. There should [be] no limit on justice,”
he said, questioning why dire conditions in the “concentration” camps
used to forcibly house Malayans were not discussed more in the case.

At
a prison-like facility named Kampong Coldstream, which was run by his
regiment, Heaton said conditions were awful. People were only put there
after being rounded up in clearance operations.

He recalled watching “kids crying as soldiers burned their food and their things,” before taking the families away to the camps.

Lord
Neuberger, president of the Supreme Court, ruled the case is too old to
re-open, a move which could affect a number of cases of abuse and
violence by British security forces during the Northern Irish Troubles.

Neuberger conceded the “evidence that came to light” was “compelling and suggests that the killings were unlawful” but said the shootings had occurred before a crucial ‘right to petition’ was recognized by British courts.

In April, ahead of the appeal, Halford said “when
six of [the soldiers] have confessed to murder,eyewitnesses remain
alive and forensic tests can confirm the killings were close-range
executions, the law should demand an answer from the state.”

“After all, those killed were British subjects living in a British-protected state,” he added. - RT, 25/11/2015

The government is not obliged to hold a public inquiry into the 1940s
killing of 24 Malayan villagers by a British army patrol – even though
it may have been a war crime – because the atrocity occurred too long
ago, the supreme court has ruled.

The majority decision by the UK’s highest court that the duty to
investigate dates to only a 10-year grace period before 1966, when the
right of individual petition to the European court of human rights was
introduced, may, however, have profound consequences for inquiries into
Northern Ireland’s Troubles.

The judicial review challenge,
brought by the relatives of 24 unarmed men killed by Scots Guards at
Batang Kali on 11 and 12 December 1948, has widened into a dispute about
when unresolved claims of injustice are allowed to disappear into the
past.

Northern Ireland’s attorney general, John Larkin QC, and several
Northern Irish human rights groups intervened on different sides in the
case because of the precedent it would set for the official duty to
investigate legacy cases from the Troubles.

The impact of the ruling will be considered by the government and
authorities in Belfast. While there have been inquiries into Bloody
Sunday and several other controversial killings, many deaths caused by
the armed forces and police in Northern Ireland are still the subject of long delayed inquests.

Delivering judgment in the Batang Kali case, Lord Neuberger,
president of the supreme court, recounted how a Metropolitan police
investigation into the alleged massacre was launched in 1969 after a
four guardsmen gave interviews to the People newspaper.

A number of soldiers from the patrol were later interviewed under
caution and confirmed they had been ordered to shoot the villagers
because they were either bandits or communist sympathisers.

Several
soldiers revealed they had been instructed by the army to lie and
maintain that the villagers had been shot while trying to escape. The
police investigation ran into Foreign Office objections and was
eventually terminated.

The supreme court judgment records a note made by DCS Frank Williams
in July 1970 that “this matter was politically flavoured and it is
patently clear that the decision to terminate inquiries in the middle of
the investigation was due to a political change of view when the new
Conservative government came into office [in June 1970]”.

Lord Kerr, one of the court’s justices agreeing with the majority,
said the “overwhelming preponderance of currently available evidence”
showed “wholly innocent men were mercilessly murdered and the failure of
the authorities of this state to conduct an effective inquiry into
their deaths”.

He added: “The law has proved itself unable to respond positively to
the demand that there be redress for the historical wrong that the
appellants so passionately believe has been perpetrated on them and
their relatives. That may reflect a deficiency in our system of law. It
certainly does not represent any discredit on the honourable crusade
that the appellants have pursued.”

Lord Neuberger said: “The desire to discover ‘historical truth’ is
understandable, particularly in a case where it involves investigating
whether a serious wrong, indeed a war crime, may have been committed.
However, not only is this a case where neither article 2 (the right to
life under the European convention on human rights) nor customary
international law would require such an investigation.

“It is also a case where the [government] has given coherent and
relevant reasons for not holding an inquiry, including expressing a
justifiable concern that the truth may not be ascertainable, and a
justifiable belief that, even if the appellants’ expectations to the
contrary were met, there would be little useful that could be learned
from an inquiry so far as current actions and policies were concerned.”

The
killings may have been unlawful, Lord Neuberger concluded, but they
occurred more than 10 years before the critical date when the right of
petition to the Strasbourg court was recognised by the UK and created a
duty to investigate.

John Halford, of Bindmans solicitors, who represented the families of
the Batang Kali victims, said: “On 12 December 1948, British soldiers
left the bodies of 24 innocent, unarmed men riddled with bullets and the
British government left their families without a credible explanation.
Our courts have decided there is no legal right to that explanation. But
they have been able to acknowledge the innocence of those killed, the
failures to investigate and the ‘overwhelming’ evidence of mass murder.

“Just as importantly, Britain has been found responsible. All of this
creates the clearest of moral imperatives on the British government to
apologise, withdraw the false account given to parliament and to
compassionately address what has been done, including by funding a
memorial. If it does not, the blood of those killed at Batang Kali will
indelibly stain the concept of British justice.”

Yasmine Ahmed, director of Rights Watch UK, said: “The outcome of
this case has considerable implications in Northern Ireland where many
of the deaths that occurred during the Troubles happened before the UK
government enacted the Human Rights Act in 1998 … The court today
recognised that the UK Government has an obligation to carry out article
2 [right to life] compliant investigations into Troubles-related deaths
in Northern Ireland.”

Darragh Mackin, a solicitor with the Belfast firm KRW Law which
represented some of the Northern Ireland NGOs, said: “Whilst not being a
satisfactory result for the relatives of victims of the Batang Kali
massacre, the judgment does have an important impact for dealing with
historic related murders in this jurisdiction. The court has held that
the obligation on the British state to investigate suspicious deaths
arises from the date the state granted the right of individual petition,
namely 1966.

“This therefore gives rise to an obligation on the British government
to undertake human rights compliant investigations into
conflict-related incidents, where necessary in order to discharge its
duties.” - The Guardian, 25/11/2015

JUDGMENT

Keyu and others (Appellants) v Secretary of
State for Foreign and Commonwealth Affairs and another (Respondents)

before

Lord Neuberger, President

Lady Hale, Deputy
President

Lord Mance

Lord Kerr

Lord Hughes

JUDGMENT GIVEN ON

25 November 2015

Heard on 22 and 23 April
2015

Appellants

Michael Fordham QC

Danny Friedman QC

Zachary Douglas QC

(Instructed by
Bindmans LLP)

Respondents

Jonathan Crow QC

James Eadie QC

Jason Coppel QC

Marcus
Pilgerstorfer

Amy Rogers

(Instructed by
Government Legal Department)

Intervener
(Attorney General for Northern Ireland Written Submissions Only)

103.
To similar effect, in Brecknell v United Kingdom (2008) 46 EHRR 42, para 66, the Strasbourg court said that “it may be that sometime later,
information purportedly casting new light on the circumstances of the death
comes into the public domain” and that “[t]he issue then arises as to whether,
and in what form, the procedural obligation to investigate is revived”. It then
gave examples including “deliberate concealment of evidence” which only
subsequently comes to light, or later items of evidence which “cast doubt on
the effectiveness of the original investigation and trial”. However in para 70
the court accepted that it was not right to say that “any assertion or
allegation can trigger a fresh investigative obligation under article 2”, but
emphasised that “state authorities must be sensitive to any information or
material which has the potential either to undermine the conclusions of an
earlier investigation or to allow an earlier inconclusive investigation to be
pursued further”.

“The case for the claimants is that
the reasoning set out in the two decision letters cannot survive a Wednesbury
challenge. We totally disagree. We are satisfied that the Secretaries of
State considered everything which they were required to consider; did not have
regard to any irrelevant considerations; and reached rational decisions which
were open to them. Indeed, when considered in the domestic legal context of
discretion, we do not think that any other Secretaries of State would have been
likely to reach a different conclusion at this stage.”

Even that principle was only one of the reasons why the
House held in R v Jones (Margaret) that the international crime of
aggression could not form part of English law. The second reason, expressed in
the speech of Lord Hoffmann with which all other members of the House agreed,
was the constitutional reason that a domestic court could not adjudicate upon
the question whether the state of which it formed part had acted unlawfully in
the course of exercising the Crown’s discretionary powers in the making of war
and disposition of the armed forces: paras 63-67.

“The courts acknowledge the
existence of a body of rules which nations accept amongst themselves. On any
judicial issue they seek to ascertain what the relevant rule is, and, having
found it, they treat it as incorporated into the domestic law, so far as it is
not inconsistent with rules enacted by statutes or finally declared by their
tribunals.”

208.
The detachable nature of the duty to investigate; the fact that this is
not inextricably bound up with the primary duty to protect the right to life,
underlay the ECtHR’s decision in Šilih v Slovenia(2009) 49 EHRR 37.
This is fundamental to a proper understanding of the correct approach to take
to the trilogy of issues which arise: the “critical date” on which a member
state will be considered bound by its treaty commitments; the relevant acts and
omissions after the critical date; and the genuine connection between the death
and the critical date. On one view, these are no more than arbitrarily selected
standards which might rather than must inform consideration of
whether a member state should be required to conduct an article 2 compliant
inquiry into a death which occurred before the Strasbourg court acquired formal
temporal jurisdiction. There is no inescapable point of principle, for
instance, which requires the adoption of a ten-year period as the absolute
limit on the period between the death and the critical date. The desirability
of a rule, whether it be described as a bright line rule or a rule of thumb, is
obvious, however. Where feasible, states should have some indication from the ECtHR
as to when their article 2 duty is likely to arise. And there has to be some
limit on how far back that duty extends. Practicability of inquiry must play a
part in the evaluation.

214.
One may begin the review of ECtHR case law with Blečić v
Croatia(2006) 43 EHRR 48. In considering statements made in that case
about the temporal jurisdiction of the Strasbourg court it is to be remembered
that the decision was given before the detachable duty to investigate
suspicious deaths had been recognised. Leaving that aside, however, it is clear
that support for either of the contended for critical dates can be discerned
from the court’s discussion about its temporal jurisdiction. Thus in para 70
the court said:

“… in accordance with the general
rules of international law, the provisions of the Convention do not bind a
contracting party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into force of
the Convention with respect to that party.” (emphasis added)

223.
In Janowiec v Russia (Application Nos 55508/07 and 29520/09)
(2014) 58 EHRR 30, the Grand Chamber again considered the question of the
temporal jurisdiction of the court. The statement in para 128 of the court’s
judgment, quoted by Lord Neuberger at para 71 above, that “… the provisions of
the Convention do not bind a Contracting Party in relation to any act or fact
which took place or any situation which ceased to exist before the date of the
entry into force of the Convention with respect to that Party (the critical
date)” is expressed in unqualified terms.

231.
Lord Hoffmann mentioned what Lord Bingham had said in the earlier case
of R (Ullah) v Special Adjudicator[2004] UKHL 26; [2004] 2 AC 323. In
para 20 of his speech in that case Lord Bingham had uttered the fateful line that
has become the source of much judicial controversy, “The duty of national
courts is to keep pace with the Strasbourg jurisprudence as it evolves over
time: no more but certainly no less”. This gave life to the so-called mirror
principle whereby the content and character of rights in the UK national sphere
should precisely match Strasbourg pronouncements. The sentence is much quoted
as is, what has been described as, “the characteristically stylish twist” that
was put on it by Lord Brown in R (Al-Skeini) v Secretary of State for
Defence (The Redress Trust intervening)[2007] UKHL 26; [2008] AC 153, para
106 where he said that the sentence “could as well have ended: ‘no less, but
certainly no more’”.

234.
In Rabone v Pennine Care NHS Foundation Trust (INQUEST intervening)[2012] UKSC 2, [2012] 2 AC 72 it was held that there was a positive obligation
to protect the life of a mentally ill young woman who had been admitted to
hospital informally because of serious attempts to take her own life. This
decision was reached notwithstanding the fact that there was no authority from the
ECtHR to that effect. In Surrey County Council v P (Equality and Human
Rights Commission intervening)[2014] UKSC 19; [2014] AC 896, para 62 Lord
Neuberger said that where there was no Strasbourg authority which dealt
precisely with the issues before this court, this court could rely on
principles expressed by the ECtHR, even if only indirectly relevant, and apply
them to the cases which it had to decide. At para 86 of that case, I reiterated
my view (first expressed in Ambrose) that this court had a duty to
determine whether a claim that a Convention right had been breached should be
accepted, even if Strasbourg had not yet pronounced upon it. And in Moohan v
Lord Advocate (Advocate General for Scotland intervening)[2014] UKSC 67;
[2015] AC 901 Lord Wilson suggested that there had been a “retreat” from the Ullah
principle which had led the court to “substantially” modify it. At para 105 he
said:

“… where there is no directly
relevant decision of the ECtHR with which it would be possible (even if
appropriate) to keep pace, we can and must do more. We must determine for
ourselves the existence or otherwise of an alleged Convention right …”

246.
The House of Lords In re McKerr[2004] UKHL 12, [2004] 1 WLR 807,
unanimously held that HRA did not have retrospective effect. On that account,
the argument that there was a duty to conduct an article 2 compliant
investigation into a death which had occurred before 2 October 2000 (the date
on which HRA came into force) was dismissed. In McCaughey some
modification (as Lord Neuberger has put it) of that position was inevitable. McKerr
had been decided before the detachable nature of the procedural requirement to
investigate a suspicious death was recognised. But it is important to
understand that McCaughey did not challenge the conclusion in McKerr
that HRA did not have retrospective effect. It was because the procedural
obligation under article 2 was a continuing one that an article 2 compliant
inquest in the latter case was required – see Lord Phillips at paras 51-52 and
61; Lord Hope at para 76; Lady Hale at para 90; Lord Brown at para 100; my own
judgment at paras 110-111; and Lord Dyson at para 134.

“… The common law no longer
insists on the uniform application of the rigid test of irrationality once
thought applicable under the so-called Wednesbury principle: see Associated
Provincial Picture Houses Ltd v Wednesbury Corpn[1948] 1 KB 223. The
nature of judicial review in every case depends on the context. The change in
this respect was heralded by Lord Bridge of Harwich … in R v Secretary of
State for the Home Department, Ex p Bugdaycay[1987] AC 514, 531 where he
indicated that, subject to the weight to be given to a primary decision-maker’s
findings of fact and exercise of discretion, ‘the court must … be entitled to
subject an administrative decision to the more rigorous examination, to ensure
that it is in no way flawed, according to the gravity of the issue which the
decision determines’.”

“In short, proportionality is—as
Professor Dr Lübbe-Wolff (former judge of the Bundesverfassungsgericht which
originated the term’s modern use) put it in The Principle of Proportionality in
the Case Law of the German Federal Constitutional Court (2014) 34 HRLJ 12,
6-17—‘a tool directing attention to different aspects of what is implied in any
rational assessment of the reasonableness of a restriction’, ‘just a
rationalising heuristic tool’. She went on, at p 16: ‘Whether it is also used
as a tool to intensify judicial control of state acts is not determined by the
structure of the test but by the degree of judicial restraint practised in
applying it.’ Whether under EU, Convention or common law, context will
determine the appropriate intensity of review: see also Kennedy v Information
Comr[2015] AC 455, para 54.”

289.
It is a tribute to the skill of the claimants’ legal team that these
arguments have to be taken seriously. They rely crucially on the Grand Chamber
decision in Janowiec v Russia (2014) 58 EHRR 30, which clarified the court’s
earlier decision in Šilih v Slovenia (2009) 49 EHRR 37. Janowiec
concerned what is generally known as the “Katyn massacre” in 1940, when more
than 21,000 Polish prisoners of war were summarily executed by officers of the
Soviet NKVD, the predecessor of the KGB. The court might have disposed of the
case on the ground that these deaths all took place long before the ECHR had
been dreamt of, let alone adopted. But it did not. It acknowledged that it only
had jurisdiction to examine acts or omissions taking place after the entry into
force of the Convention. But it posited two circumstances in which that
jurisdiction might arise even though the deaths themselves had pre-dated the
critical date. The first was where there was a “genuine connection” between the
death and the entry into force of the Convention. This had two components, both
of which must be satisfied. First, “the period of time between the death as the
triggering event and the entry into force of the Convention [was] reasonably
short, and [second] a major part of the investigation [had] been carried out,
or ought to have been carried out, after the entry into force” (para 148). The
court had previously said that the period should be no more than ten years
(para 146), although it appears that this was a maximum which might not apply
in all cases. The second circumstance was “if the triggering event was of a
larger dimension than an ordinary criminal offence and amounted to the negation
of the very foundation of the Convention” (para 150). The examples given were
war crimes, genocide or crimes against humanity. But this “Convention values” obligation
could not arise where the deaths had taken place before the adoption of the
Convention, “for it was only then that the Convention began its existence as an
international human rights treaty” (para 151). It would have been much simpler
for us all if the Grand Chamber had applied the same logic to the “genuine
connection” test. But it did not.

291.
Left to myself, therefore, I would not have been prepared to reject this
claim on the ground that the critical date was 1966 rather than 1953. We do not
have slavishly to follow the Strasbourg jurisprudence. Lord Bingham’s famous
dictum in R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 20,does not require us to do so. Thus far, it is possible to
discern four broad propositions from our own case law. First, if it is clear
that the claimant would win in Strasbourg, then he will normally win in the
courts of this country. This is because it would negate the purpose of the
Human Rights Act for the claimant to have to bring a claim in Strasbourg. But
this is subject to the well-known qualifications set out in Manchester City
Council v Pinnock (Secretary of State for Communities and Local Government
intervening) [2010] UKSC 45, [2011] 2 AC 104, para 48 (and recently
reaffirmed in R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271, para 26): that the “clear and constant” line of Strasbourg
authority is “not inconsistent with some fundamental substantive or procedural
aspect of our law, and whose reasoning does not appear to overlook or
misunderstand some argument or point of principle”. Second, if it is clear that
the claimant would lose in Strasbourg, then he will normally lose here too: R
(Al-Skeini) v Secretary of State for Defence (The Redress Trust intervening) [2007] UKHL 26, [2008] AC 153is an example where the House of Lords thought
that the answer was clear. Strasbourg had drawn a line in the sand –
jurisdiction was territorial, with only a very few narrowly defined exceptions,
which did not apply to civilians killed in the course of military operations in
Iraq. As it happened, the House was wrong about that (see Al-Skeini v United
Kingdom (2011) 53 EHRR 18), but that does not affect the principle. Third,
there are cases where it is clear that Strasbourg would regard the decision as
one within the margin of appreciation accorded to member states. Then it is a question
for the national courts by which organ of government the decision should be
taken: R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38, [2015] AC 657 is an example of this, in which this court was divided
on where responsibility lay for deciding whether the outright ban on assisting
suicide was justified. Fourth, there are cases on which there is as yet no
clear and constant line of Strasbourg jurisprudence. We do not have to wait
until a case reaches Strasbourg before deciding what the answer should be. We
have to do our best to work it out for ourselves as a matter of principle: Rabone
v Pennine Care NHS Foundation Trust (INQUEST intervening) [2012] UKSC 2,
[2012] 2 AC 72 is an example of this (an example which, as it happened, was
swiftly followed by a Strasbourg decision which is wholly consistent with it:
see Reynolds v United Kingdom (2012) 55 EHRR 55). There may be other
situations in which the courts of this country have to try to work out for
themselves where the answer lies, taking into account, not only the principles
developed in Strasbourg, but also the legal, social and cultural traditions of
the United Kingdom.

306.
The Divisional Court dealt with this issue in some detail: [2012] EWHC 2445 (Admin), paras 124 to 176. The court considered five possible purposes of
an inquiry, derived from Lord Howe’s evidence to the Select Committee on
Government by Inquiry in 2004-2005: (a) establishing the facts, (b) learning
from events and preventing a recurrence, (c) catharsis and improving
understanding of what happened, (d) providing reassurance and rebuilding public
confidence, and (e) accountability. To this they added (vi) promoting good race
relations, as required by section 71 of the Race Relations Act 1976. But the
court’s assessment of how an inquiry might achieve all of these purposes was
heavily influenced by its conclusion that “it would appear to be very difficult
at this point in time to establish definitively whether the men were shot
trying to escape or whether these were deliberate executions” (para 159). Thus
the facts could not definitely be found (paras 160, 161); catharsis could not
be achieved (para 165); reassurance could not be given or public confidence
rebuilt (para 168); accountability could not be determined (para 169); and it
could not be said whether there would be negative or positive consequences in
race equality terms (para 172). In addition, times had changed so much that it
was very questionable how much could be learnt (para 164); and the costs, even
of a “stream-lined” inquiry, which is all the court thought necessary, were a
material factor (paras 174-175). Hence the Secretaries of State had taken into
account the relevant factors and reached a decision which was plainly open to
them to reach (para 176).

307.
The Court of Appeal was critical of the approach of the Divisional
Court: [2014] EWCA Civ 312, [2015] QB 57. The difficulties of reaching “definitive”
conclusions “lay at the heart of its reasoning” but this was to impose too high
a threshold (para 109). Recent public inquiries, including the Shipman, Bloody
Sunday and Baha Mousa inquiries, had adopted a lower and more flexible
standard. Moreover, the Secretaries of State had expressly not assumed that it
was unlikely that an inquiry could reach firm conclusions. Nevertheless, they
took into account the evidential difficulties; considered that establishing the
truth is especially important when it can cast light on systemic or
institutional failings, which can then be corrected, and this is more likely
where the events are relatively recent; and doubted the contemporary relevance
of any findings, given how much had changed since 1948. The costs would be
considerable. Overall, the conclusion was that the benefits to be gained would
not justify the costs. The Court of Appeal was “satisfied that the Secretaries
of State had considered everything which they were required to consider; did
not have regard to any irrelevant considerations; and reached rational decisions
which were open to them” (para 118).

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